Thursday, July 21, 2005

Aren't Activist Judges Supposed To Be Liberal?

I just read this post over at Balkinization from about a week ago. It's interesting to see these numbers to show how what conservatives say they want and what they actually want are two different things. Consider what Bush said when nominating Roberts. He said that Roberts will not "legislate from the bench." You know, those darned activist judges who continually strike down the laws that our fair Congress passes. Yeah, the ones who get in the way of the legislature's attempts to establish our rabidly capitalistic theocracy mandated by that overwhelming majority of 51%.

So, looking at the current court, who are the activists? When a law is challenged, these percentages reflect the judges' propensity to strike down the law:

Thomas 65.63%
Kennedy 64.06%
Scalia 56.25%
Rehnquist 46.88%
O’Conner 46.77%
Souter 42.19%
Stevens 39.34%
Ginsburg 39.06%
Breyer 28.13%

So the 3 extreme right-wingers (Rehnquist, Thomas, and Scalia) are far more likely to usurp the power of Congress than the most liberal (Stevens, Ginsburg, and Breyer). I was kind of surprised to see Kennedy ahead of both Scalia and Rehnquist, but he is also fairly conservative himself.

The interesting (but obvious) observation is that this once again demonstrates that Bush is either a fool or a liar. He wants someone who won't legislate from the bench. But Scalia and Thomas are his ideal judges. Those two are more likely to strike down legislation than to defer to Congress. Which is Bush? We here at Nameless Rantings prefer to follow the esteemed example of Fox News. We report, you decide.


At 3:56 PM, Anonymous Anonymous said...

Your are twisting the facts, and you are stupid. Study all of the votes by the left and you will see.

At 3:53 AM, Blogger ncdave4life said...

Hello Michael,

I think you have some confusion about what constitutes judicial activism. An activist judge is one who substitutes his own Will for the actual meaning of the law, as originally understood and intended by those who wrote it (and, in the case of constitutional law, by those who ratified it). An activist judge is not simply one who votes to uphold the constitutionality of legislation least frequently. If that were the case then we would best be served by abolishing the Supreme Court altogether, and leaving Constitutional interpretation to Congress. (That's not an original idea, BTW; see Federalist No. 78.)

To rule that a statute is unconstitutional is an activist ruling ONLY if the statute is NOT actually in conflict with the originally understood meaning of the Constitution (or of both constitutions, State and federal, when there is a State constitutional issue involved).

In other words, what matters is Truth. If, when ruling on the constitutionality of a statute, a jurist tells the truth about the actual original meaning of the Constitution and how it applies to the statute in question, then he is ruling properly. But if he lies about the Constitution's meaning or applicability, perhaps inventing obfuscatory artifices like "emanations and penumbras" to get the result he wants, then he is behaving as a judicial activist. (In Federalist No. 81 the Framers suggested impeachment of such jurists!)

If a statute is in conflict with the Constitution, then for a jurist to rule that the statute is NOT unconstitutional is a lie, and an activist ruling, because such a ruling permits the legislative branch to effectively amend the Constitution without following the process in the Constitution which the People have defined for making Constitutional amendments.

You should think of constitutions as similar to limited powers of attorney, by which the People define certain enumerated responsibilities and grant certain enumerated powers to governments (State and federal) which are constituted for the purpose of fulfilling those responsibilities. The constitutions are the Peoples' instructions to the governments which are constituted to act as the People's agents, on their behalf. A proper judicial ruling is one which follows those instructions faithfully, and activist ruling is one which does not.

When analyzed in this way, Thomas and Scalia are plainly the least activist members of the SCOTUS, because they most consistently defer to the original understanding of the meaning of the Constitution and laws, and are least inclined to let their own Will color their legal judgment. Beyer, Ginsberg, Stevens, and Souter are the most activist jurists, because they are least deferential to the originally understood meanings of the Constitution and laws.

BTW, we have some background in common. My B.S. is from MSU (I was a Briggsie), and I have a Masters in CS from UT Austin.


-Dave Burton
dave at burtonsys dot com


Post a Comment

<< Home